Chapter 30 - § 30.5 • NON-CITIZENS AND EFFECTIVE ASSISTANCE OF COUNSEL

• Jurisdiction: Colorado

§ 30.5 • NON-CITIZENS AND EFFECTIVE ASSISTANCE OF COUNSEL

Given the intersection of immigration and criminal law and the potentially draconian immigration penalties that flow from a conviction, both state and federal courts have outlined the Sixth Amendment duty that defense counsel owes to non-citizen defendants. This constitutional duty was first articulated in Colorado over 30 years ago, and was more recently examined in 2010 by the U.S. Supreme Court.

§ 30.5.1—People v. Pozo And The Duty Of Defense Counsel In Colorado

Colorado has long defined the duty that defense counsel owes to non-citizen clients regarding the immigration consequences of criminal convictions. In 1987, the Colorado Supreme Court decided People v. Pozo, holding that the failure to advise a non-citizen defendant of the potential immigration consequences of a criminal conviction may constitute ineffective assistance of counsel.¹²⁶

In Pozo, the court based its holding around the two-pronged test for evaluating ineffective assistance of counsel articulated in Strickland v. Washington¹²⁷ and Hill v. Lockhart,¹²⁸ which required a defendant to show that defense counsel's performance fell below professional norms and that the defendant suffered prejudice as a result.¹²⁹ Pozo explained that such claims should be evaluated on a case-by-case basis, based on the "objective standards of minimally acceptable levels of professional performance prevailing at the time of the challenged conduct."¹³⁰

Since 1987, Pozo has governed the evaluation of ineffective assistance of counsel claims related to immigration consequences in Colorado. Over time, and in response to the decision, the academic and legal community has provided analysis, training, and technical assistance to defense attorneys — as well as prosecutors, judges, and others in the criminal justice system — regarding the immigration consequences of convictions.¹³¹ During the last three decades, Pozo has provided a narrow but essential post-conviction remedy in situations where representation by defense counsel is ineffective.

§ 30.5.2—Padilla v. Kentucky And The Sixth Amendment Duty To Non-Citizens

In 2010, the U.S. Supreme Court decided Padilla v. Kentucky, holding that the Sixth Amendment requires defense counsel to provide affirmative and competent legal advice to non-citizen defendants regarding the potential immigration consequences of a guilty plea.¹³² The Court held that, because deportation is such a serious consequence and so closely intertwined with a non-citizen's underlying criminal proceedings, defense...